Timothy Burke is upset that Amanda Marcotte called arguments made by people like Benjamin Wittes that pro-choicers should “let go” of Roe “horseshit.” Whether or not one likes Amanda’s choice of words, however, I think she certainly has the better of the argument. Burke’s post does intelligently express some of the most common “contrarian” arguments about Roe, which are worth attending to.

The first problem with Burke’s post is that it’s engaged in some obvious strawman demolition. Burke asks: “Does the campaign for the right to choose in Ireland curl up and die because they don’t have Roe vs. Wade to begin with? You work with what you got. Go to the barricades for Roe if you like, but if you don’t have a Plan B, then don’t spit on the people who do.” But, of course, nobody is arguing that there shouldn’t be a “Plan B,” or that pro-choicers should give up if Roe is overturned. What Amanda and other critics of Wittes object to is his claim that Roe being overturned might not affect reproductive rights that much, or perhaps may even be a net positive. I can understand why Burke doesn’t want to defend this claim, since (as he essentially concedes) it is transparently wrong. But once you’ve conceded this, you’ve conceded that it’s important to preserve Roe, and that therefore Wittes’ central (and most interesting) argument is incorrect.

So what, exactly, is Burke arguing? He puts forward a couple of other points that try to salvage the Wittes thesis:

1)”It’s pretty clear [Roe is] going to be overturned sooner or later, either in total or as good as such.”

If Burke is right about this, then I agree that Wittes’ arguments become more relevant. But there’s no reason to believe that he is. As for Roe being directly overturned, this is clearly premature, and I think the odds are against it. Not merely because a Democratic President may well appoint Stevens’ or Ginsburg’s replacement if they hold on until 2008, but because there’s good reason to believe that overturning Roe is not a high priority for the Republican elites. It is entirely possible that Roberts would vote to keep Roe. I’m certainly not saying that Roe is safe, but it’s far too early to write the obituaries.

I suspect that a lot of the weight of this argument relies on the “as good as such” qualifier. I assume that he means that if the Supreme Court were to uphold Roe but continue to uphold a variety of regulations such as parental consent and waiting periods, this would be a de facto overturning of Roe. This is a common (and understandable) belief, but it isn’t correct. As Mark Graber recently noted, “the empirical evidence suggests that keeping abortion legal has far more powerful effects on access to abortion than any restrictive policy short of outright bans on the procedure.” This isn’t to say that these types of regulation aren’t bad; women shouldn’t be subject to a humilating obstacle course when they get an abortion, and as far as I’m concerned one woman being prevented from obtaining an abortion by essentially unprincipled regulations is too many. But there is a huge difference between legal-but-regulated abortion and criminalized abortion. Women who want to get abortions usually get them as long as the procedure remains formally legal. (And, of course, overturning Roe would not reduce the number of obstructionist regulations.)

2)”Wittes observes that centering the debate on Roe vs. Wade has prevented those of us who believe in choice and in the right to privacy and self-ownership from securing that right either constitutionally (with an amendment) or through state and federal statutes. We’ve put all our eggs in the Supremes’ basket.”

Again, I don’t think that this is a very persuasive argument. (Wittes, I think, is falling for the common fallacy that litgation and other forms of polical action are in some sort of zero-sum competition.) Roe hasn’t “prevented” anything. With respect to a constitutional amendment, the chances of this happening are absolutely nil with or without Roe, so that’s an obvious red herring, and any argument that a constitutional amendment is a more viable prospect than upholding a Supreme Court decision that has already stood for 30 years cannot be taken seriously. That pro-choicers (unlike many pro-life groups) haven’t been suckered by the chimera of a hopeless amendment campaign is to their relative credit. With respect to state legislation or state constitutional amendments, again Roe hasn’t prevented anything; Washington state enacted a constitutional amendment protecting abortion rights after Roe, for example. It’s true that such legislation hasn’t been a priority, but that’s for the obvious reason that it’s basically meaningless window dressing. (Burke’s analogy with Brown doesn’t wash, because school de-segregation required legislative intervention to secure compliance in a way that Roe doesn’t.) Such protections will only be possible in states where abortion rights are the most secure in the first place, and can be easily changed should the climate change. (I am frankly puzzled by claims that legislation would somehow be more stable than a Supreme Court decision. With the exception of major entitlements like Social Security, it’s easier to change the former than the latter.) For many states, however, Roe is the only viable means of securing legal abortion, and it is therefore entirely rational for pro-choicers to focus on upholding Roe. And even if you think that such legislation would be more effectual than I do, passing it does not require “letting go” of Roe.

3)”More importantly, Wittes is right, in my opinion, to note that our reliance on Roe has kept the cultural conservatives from having to actually shoulder the political cost of passing specific statutes that take away a right that the majority voting population of most states supports, from having to actually do something that will have concrete consequences in terms of the everyday lives of most Americans.”

This is a very common argument, but I don’t understand it. By the same logic, one can argue that keeping Social Security on the books has prevented economic conseravtives from doing something that would be extremely unpopular in most states. Every policy victory, if your position is popular, means that the opposition’s unpopular policy isn’t being enacted. Forcing the Republican Party to actually gut the New Deal/Great Society rather than just talk about it would certainly be extremely damaging to the Republican Party. This is hardly good reason to hope that this happens. In the most generous construction this seems to be a “heighten-the-contradictions” argument, sacrificing tangible benfits now for speculative benefits later on, and in the case of Roe in my opinion there’s no way the future benefits could outweigh the certain costs. (In addition, it’s worth noting again that Congress and the states can use “compromise” legislation–delegating abortion policy to medical committees–that would effectively criminalize abortion for poor women, but would be unlikely to decisively undermine the Republican Party. This would be the worst of all worlds–bad policy outcomes that have only limited political damage–and unfortunately would be the most common result.)

I should say that I do agree completely with Burke when he says that the agrument that “history would dispense with the opposition to choice, and that all we had to do was keep strong and organized amongst ourselves” was and is a “folly,” although whether this assumption is as widespread as he posits is questionable. The Supreme Court’s abortion decisions will not defuse the conflict, and of course we must accept that the abortion debate in the United States will be characterized by incommensurable conflict for the forseeable future even if Roe stands; Burke is certainly right about that. But it is equally naive to think (and here I should emphasize that this many not be Burke’s position) that this debate would be defused simply by “returning the issue to the legislatures.” This is a pipedream. The abortion debate will rage no matter what. But if it rages without Roe, the result will be greatly restricted reproductive rights, and it is therefore very desirable to make preserving Roe a priority.

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[…] Well, perhaps if you’re a wealthy Manhattan attorney who is indifferent to anybody outside of immediate social circles, you won’t notice. If you actually care about the rights of American women more broadly, you sure as hell will notice. […]

[…] The argument that Roe created a counterproductive backlash is, I think, wrong in almost every detail. Roe has always been popular; there’s no evidence that winning in the courts has different consequences than winning in other political institutions; and the argument that abortion rights would be as well or better protected if not for Roe is implausible in the extreme. […]